Case No. UKUT-00629-(IAC)

14. The gravamen of the argument on behalf of the Secretary of State is that the Judge erred in law by considering paragraphs 399 and 399A en route to his conclusions. W e consider this argument to be fundamentally flawed. Logic, reason and common sense dictate that paragraphs 399 and 339A must be considered in the application of the “over and above” test enshrined in paragraph 398. Indeed a failure to do so, if material, would itself be an error of law. In cases where, as here, the “ over and above ” test is engaged, paragraphs 399 and 399A provide the bridge, or link, between the application of the test and the resulting outcome. Giving effect to the ordinary and natural meaning of the three provisions of the Rules under scrutiny, we consider that: (a) The first qu estion is whether, having regard to the finding s and evaluative assessment s made , the Secretary of State (in the first place) and the FtT (on appeal) considers that either paragraph 399 or 399A of the Rules applies . ( b) If the above exercise yields the assessment that neither of the said paragraphs applies, it is then necessary to decide whether there are very compelling circumstances over and above those described in paragraphs 399 and 399A. 15. It requires no manipulation or distortion of the text of the FtT’s decision to conclude that the Judge, in deciding the appeal, gave effect to the approach which we have espoused above and to that contained in